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Kiobel Alien Tort Statute Reargument in SCOTUS Today

Last term the Supreme Court heard arguments in Kiobel, an Alien Tort Statute case that presented, among other things, the question of whether the ATS includes corporate liability – with, of course, large implications for corporations both domestic and foreign. To everyone’s surprise, at oral argument the questions ran far more to the question of whether and how the ATS should be understood to apply extraterritorially – for example, to corporations having no substantive connection to the United States. The parties had not deeply briefed this question, as it had not been one of the core issues on appeal from the Second Circuit, and the Court ordered the parties to re-brief around the extraterritoriality issue. The re-argument is being held this morning at the Court. Over at Lawfare, former DOS Legal Adviser and now Arnold & Porter partner John Bellinger is likely to post something following argument – and over at Opinio Juris, a panel of guest commentators have been lined up. These should all be very interesting comments, and I’ll try to find a time Tuesday to post my own thoughts. (Full disclosure, I am on one of the amicus briefs.)

Last February, early in the first oral argument in Kiobel v. Royal Dutch Petroleum, Justice Alito asked Paul Hoffman – the lawyer representing twelve Nigerian nationals who filed a lawsuit against three European oil companies for aiding the Nigerian military in killing and torturing civilians who protested oil exploration in Nigeria – a simple but potentially far-reaching question: “What business does a case like this have in the courts of the United States?” Just a few days later, the Court ordered a second round of briefing and oral argument, on a question that at bottom mirrors the one posed by Justice Alito – whether a case like Kiobel can be brought in U.S. courts at all.

The SCOTUSblog post also adds an interesting note on the position of the Obama administration in the case. The Obama administration initially filed an amicus brief that largely supported the Nigerian plaintiffs against Shell Oil – but on re-argument, switched positions:

The Obama Administration has been more sympathetic to human rights cases brought under the ATS: in its initial amicus brief, filed last Term, the government argued that corporations could be held liable under the ATS, and it urged the Court to allow the case to proceed in U.S. courts. It reasoned that U.S. courts can and should serve as a forum to resolve cases alleging a limited group of violations of international law. Moreover, it noted, Congress has never challenged “the view that some extraterritorial causes of action may be recognized under the ATS”; to the contrary, in the wake of the Second Circuit’s decision in Filartiga, Congress passed the Torture Victim Protection Act, which provides that individuals can be held civilly liable in U.S. court for acts of torture or extrajudicial killing that occur in other countries.

However, the government’s position shifted in its new amicus brief. In that brief, the government told the Court that cases like Kiobel – involving foreign plaintiffs, the conduct of a foreign country, and the role of a foreign corporation from a third country in that conduct – have no place in U.S. courts. The government’s brief notes that foreign governments are typically immune from suit, and that although the Kiobel plaintiffs are suing private corporations, “adjudication of the suit would necessarily entail a determination about whether the Nigerian Government or its agents have transgressed limits imposed by international law.” Such a determination by a U.S. court rather than by the executive or legislative branches could create unwanted friction between the U.S. and Nigerian governments.

Notably, lawyers from the State Department appeared on the government’s first amicus brief in Kiobel, but not on the second.